In Weigand v. NLRB, the US Court of Appeals for the DC Circuit denied an employee's petition for review of a decision by a majority of the three-member panel (Board) heading the NLRB’s judicial and election functions that found a union not liable for comments posted on a union-created Facebook page because the comments were posted by non-agent union members and the page was only accessible to members in good standing (No. 14-1024, (D.C. Cir. Apr. 17, 2015)).

Weigand was a bus driver employed by Veolia. He was a member of the collective bargaining unit represented by the union, but was not a union member. In March 2012, collective bargaining negotiations between Veolia and the union resulted in a six-day strike. The union used a private Facebook page to communicate with its members about the negotiations and strike plans. The page, created by the union's vice president, could only be accessed and commented on by union members in good standing. The page often included passionate comments about topics such as picketing and non-union members crossing picket lines. For example, the posted comments included a rhetorical question asking if the picketers could “bring the Molotov Cocktails” to picket the hotel where the “scabs” were being housed. However, there were no allegations or findings of violence or inappropriate disturbances during the strike.

In April 2012, Weigand filed an unfair labor practice (ULP) charge alleging that the union restrained him from exercising his rights under Section 7 of the NLRA. The Board's General Counsel issued a complaint alleging that the union had violated Section 8(b)(1)(A) based on comments:

The administrative law judge (ALJ) rejected the General Counsel's argument that the union had a "duty to disavow" the Facebook comments made by union members and found that those comments had not violated the NLRA, as they were on a private page and not made by agents of the union. The ALJ found that the union did violate Section 8(b)(1)(A) when picketing members threatened employees who crossed the line. The Board primarily adopted the ALJ's findings and decision.

Weigand filed a petition for review with the US Court of Appeals for the DC Circuit to challenge only the Board's order on the Facebook comments.

The DC Circuit denied Weigand's petition for review of the Board's decision, concluding that the Board did not err in finding the union not liable for the Facebook comments posted by non-agents of the union.

The court noted that it has previously stated that it must show deference to the Board and uphold its judgments unless it concludes that either:

(Wayneview Care Ctr. v. NLRB, 664 F.3d 341, 348 (D.C. Cir. 2011).)

In denying Weigand's petition for review, the DC Circuit found that:

The DC Circuit noted that in assessing the present matter, it would not consider whether the case would be decided differently if actual threats were posted on a public internet site.

Weigand is an example of a court's deference to the NLRB and makes Facebook rants and threats of violence by non-union officials on union-sponsored social media sites virtually unactionable. Under Weigand, threats by rank and file union members on a union-sponsored social media website are: